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2018 DIGILAW 475 (BOM)

Julio Ribeiro v. State Of Maharashtra

2018-02-16

R.G.KETKAR, R.M.BORDE

body2018
ORDER 1. During the course of hearing of the matter on 15th January, 2018, this Court was informed that the State Government has instructed the Commissioner of Municipal Corporation of Greater Mumbai (for short, ''Municipal Corporation'') to enquire into the matter relating to outbreak of fire within the premises of Kamala Mills compound at two restaurants, namely, ''1 Above'' and ''Mojo''s Bistro'' and to submit a comprehensive report covering all related issues to the State Government. In accordance with the directives issued by the State Government, the Commissioner of Municipal Corporation has conducted a preliminary enquiry and tendered a report. Copy of the same has also been placed on record in the instant matter in observance of the directions issued earlier. 2. Certain prima facie findings recorded in the report by the Commissioner of Municipal Corporation needs to be considered. 3. So far as the probable cause of fire is concerned, based upon the findings of the Chief Fire Officer, the Commissioner has drawn certain conclusions in the report. It is noted in the report that the owners of two restaurants have violated all the Rules and Regulations of construction and fire safety norms. Inspite of the notices and prosecutions launched against them by the Ward staff, they continued to indulge into the violations with impunity. It is recorded that the materials used for construction of terrace-covering was extremely inflammable which caused very rapid spread of fire on the entire terrace portion within matter of minutes, giving no chance to the customers to vacate the premises safely. The owners of two restaurants have been negligent about fire safety issues and have shown disregard to the Rules and Regulations. It is concluded that the fire started from the Mojo''s Bistro restaurant due to fire embers emanating from fanning of charcoal for use in the hookah. The premises had a very high level of fire hazard due to the fire tricks played by the bartenders. The activity was dangerous and posed a threat to life and property. The rampart unauthorized use of hookah on the terrace covered illegally, was another contributing factor. 4. The operators of ''1 Above'' had constructed a full scale restaurant illegally on the open terrace under their possession. The activity was dangerous and posed a threat to life and property. The rampart unauthorized use of hookah on the terrace covered illegally, was another contributing factor. 4. The operators of ''1 Above'' had constructed a full scale restaurant illegally on the open terrace under their possession. It has also been reported that the fire escapes of the building at all levels were either under illegal use, closed or locked which prevented use of the same by the customers at time of fire. The long fire exit which was supposed to be used by the people was also encroached with pipe fittings along the parapet wall and covering of the same with the aluminum sheets thus reducing the effective width of the fire escape passage to the extent of almost 60%. The staircase exists were closed due to glass partition at lift lobby and the staircase at the open terrace was made inaccessible and not visible due to unauthorized construction on the terrace fully covering it on ''1 Above'' restaurant side. The restaurant owners have not taken any safety precautions at all. 5. So far as ''Mojo''s Bistro'' restaurant is concerned, it has been reported that the owners, apparently in collusion with the owner of Kamala Mills Mr.Ramesh Gowani, have carried out massive unauthorized construction within the building and the open terrace which was shown as fire exit for both the restaurants. It is reported that the owners of ''Mojo''s Bistro'' restaurant have raised unauthorized construction which was not part of NOC. The construction material which was used for erecting unauthorized structure was prone to fire. Although action was taken earlier of demolition of the illegal construction at the instance of the Corporation, the owners again carried the illegal construction and started business. The restaurant was opened in an area which was not permitted. At the restaurants hookah parlor was being operated and the area was being used for smoking purposes unauthorizedly. The permit issued by the Excise Department in favour of M/s. Tirupati Restaurant and Cafe on 1.9.2017 was restricted to an area of 800 sq. ft., bar counter area to the extent of 24 sq. ft. and storage of liquor area to the extent of 127.50 sq. ft. However, violating the norms, the operators of the restaurants were serving liquor beyond the prescribed area. 6. ft., bar counter area to the extent of 24 sq. ft. and storage of liquor area to the extent of 127.50 sq. ft. However, violating the norms, the operators of the restaurants were serving liquor beyond the prescribed area. 6. The callous and negligent attitude of the operators of restaurants in raising illegal construction, operating hookah parlors, serving liquor in the area beyond the permission accorded under the licensing norms, operating the restaurants unauthorizedly on the open terrace, covering the open terrace with inflammable material, blocking the exist routs by raising illegal construction thereby making it impossible for the inmates of the restaurants to escape, has contributed to the loss of 14 lives and rendering more than 30 individuals injured. The loss of life is attributable to the illegal activities of the operators of the restaurants in connivance of the owners of Kamala Mills as well as the authorities who are responsible to ensure observance of Regulations and the licensing norms. It is in fact institutional failure of the Municipal Corporation as well as the State Excise Department. 7. It is not a matter of dispute that the restaurants were located on the land of sick and/or closed cotton textile mill. It is the contention of the petitioner that most of the mill land is being utilized for the commercial purposes and there are about 65 restaurants operating within the area. It is alleged that there is rampant violations of the Regulations governing the development or re-development of the land of closed cotton textile mill. The learned Senior Counsel appearing for the respondent Corporation, however, has categorically denied the contention and stated that there are about 16 restaurants operating in the Kamala Mills and the permissible user for the commercial purposes is within the prescribed limit provided under relevant Development Control Regulations. Prima facie there is ample material to conclude that there are rampant violations of the Development Control Regulations and the property has been developed in violation of the norms and is being put to commercial purposes. It also prima facie appears that by misrepresentation, additional Floor Space Index (FSI) has been secured by the owner under the garb of developing the area for Information Technology establishment. 8. It also prima facie appears that by misrepresentation, additional Floor Space Index (FSI) has been secured by the owner under the garb of developing the area for Information Technology establishment. 8. It is the categoric allegation of the petitioner that though the owner of the mill has secured the benefits under the policy decision taken by the State Government of awarding additional FSI for building Information Technology establishment, the constructed buildings are not put to use for aforesaid purpose but are being used for commercial activities. It is alleged that such change of user is in connivance with the Corporation authorities. 9. Regulation 58 of the Development Control Regulations for Greater Mumbai, 1991 provides that with the previous approval of the Commissioner to a layout prepared for development or redevelopment of the entire open land and built-up area of a sick and/or closed cotton textile mill and on such conditions deemed appropriate and specified by him and as a part of a package of measures recommended by the Board of Industrial and Financial Reconstructions (BIFR) for the revival/rehabilitation of a potentially viable sick and/or closed mill, the Commissioner may allow the existing built-up areas to be utilized - (i) for the same cotton textile or related user subject to observance of all other Regulations; (ii) for diversified industrial user in accordance with the industrial location policy, with office space only ancillary to and required for such users, subject to and observance of all other Regulations; (iii) for commercial purposes, as permitted under these Regulations. 10. Sub-clause (b) of Regulation 58 provides for (i) the percentage to be earmarked for recreation ground/garden/playground or any other open user as specified by the Commissioner, (ii) the percentage to be earmarked and handed over for development by MHADA for Public Housing/for mill worker''s housing as per guidelines approved by Government to be shared equally, and (iii) the percentage to be earmarked and to be developed for residential or commercial user (including users permissible in residential or commercial zone as per these Regulations) or diversified industrial users, as per industrial Location Policy, to be developed by the owner. 11. It is the contention of the petitioner that the policy relating to percentage of user for different purposes has been violated by the Mill owner. 11. It is the contention of the petitioner that the policy relating to percentage of user for different purposes has been violated by the Mill owner. It is contended by the learned Counsel appearing for the respondent that the percentage of user prescribed under clause (b) of Regulation 58 shall apply only in respect of open area available and it is not necessary to compute the constructed area for the purposes of prescription of diversified activities prescribed in clause (b) of Regulation 58. It is also further contended that since the owner of the Mill, has undertaken the development for the purposes of Information Technology establishment, he has been awarded higher 1.33 FSI apart from usual admissible FSI. It would be appropriate to refer to Regulation 33(16), which reads thus : "33. Additional Floor Space Index which may be allowed in certain categories. (16) Buildings of Information Technology Establishment - The Commissioner may permit the floor space index specified in Table No.14 above to be exceeded by 100% subject to following conditions in respect of - (a) All IT and ITEs units in Public IT Parks. (b) All registered IT and ITEs units located in Private IT Parks, approved by Director of Industries in the State; Provided that maximum of 80% of the total FSI may be used for IT/ITEs/IT supported Financial Services with the prior approval of the State Government and remaining 20% may be used for commercial services. (c) The IT supported Financial Services shall be restricted to the users specified by the Industry Deptt, in its Government Resolution No.IMC/2008/CR-46/IND-2, dated 13th August, 2008 and as may be amended from time to time by the High Power Committee and Industries Department. (d) The additional FSI shall be granted upon the payment of premium. Such premium shall be recovered at the rate of 25% for IT/ITEs users, 40% for the IT supported Financial Services and 100% for Commercial users of the present market value of the land under reference as indicated in the Ready Reckoner: Provided that 40% of the present market value of land under reference as indicated in the Ready Reckoner will be liable to be paid even if only a part of 80% of the total area is used for IT supported Financial Services. (e) 25% the total premium so charged shall be paid to the Government and remaining 75% shall be paid to the said Authority. (f) The premium so collected by the Planning Authorities shall be primarily used for development/upgradation of off-site infrastructure. (g) In the event, the developer comes forward for provision of such off-site infrastructure at his own cost then the said Planning Authority shall determine the estimated cost of the works and shall also prescribe the standards for the work, after completion of the works the said Planning Authority shall verify as to whether the same is as per prescribed standards and thereafter, by deducting the cost of works, the balance amount of premium shall be recovered by the said Planning Authority. (h) Additional FSI for IT supported Financial Services and 20% commercial users will be applicable in those zones where the Development Control Regulation permit such use. (i) No condonation in the required open spaces, parking and other requirements prescribed in these regulations shall be allowed in case of such additional FSI. However, in case of demonstrable hardship, the Municipal Commissioner of Municipal Corporation of Greater Mumbai may relax any of these provisions." 12. It is informed that the owner of the Mill has availed of the benefits of additional FSI under Regulation 33(16) and has raised the construction. A serious doubt is raised by the petitioner that the additional FSI has been utilized by the owner for the purposes of development of infrastructure for commercial user. There is an indication in the report tendered by the Commissioner, which prima facie supports the contention of the petitioner. It is recorded in the report prepared by the Commissioner of Municipal Corporation that the owner of Kamala Mills appears to have illegally allotted the area to Royal Traders and subsequently to M/s. Sigrid Ospitalita and Entertainment LLP & M/s. Tirupati Hospitality Pvt. Ltd. The owners were aware that the open terrace area cannot be used for such activities, however, the same has been allotted under an agreement entered into with the operators of the restaurants. It is further recorded that the owner of the premises where the fire incident occurred, namely, the Trade House building is responsible for various illegalities those were being carried out. It is further recorded that the owner of the premises where the fire incident occurred, namely, the Trade House building is responsible for various illegalities those were being carried out. The owner of the building is responsible for unauthorized construction carried out on the third floor, in respect of which proposal for approval of additions and alterations of the building plan were submitted, permission obtained but construction was done at variance with the approval and premises was put to use without obtaining the completion certificate from the building proposal department. 13. It is also reported that initially the proposal of addition and alteration of Kamala Mills was approved as per the provisions of Regulation 58. Subsequently, owner of Kamala Mills came forward with the proposal for development under modified Regulation 58. According to the Commissioner of Municipal Corporation, since the area of the built-up structure was more than the plot potential, the sharing of the balance land with the Municipal Corporation/MHADA was not applicable. The owner got the additional FSI as provided under Regulation 33(16) to the extent of 1.33 in addition to zonal FSI. The incentive is meant for the entire built up area to be used for IT and IT Enabled Service users. The relevant regulations prescribes use of only 20% of the incentive area for commercial purposes. 14. It is reported by the Commissioner of Municipal Corporation in the report that there is a possibility that Kamala Mills might have used commercial areas beyond the permissible upper limit. It is further observed that there may be further violations of FSI and/or addition, alteration without approvals and violation of the IT policy of the Government of Maharashtra. The Commissioner has requested for grant of three months time for thorough verification of this aspect. 15. It must be recorded at this stage that considering the scale of violations of Rules and Regulations, it cannot be visualized that those can occur without the knowledge of the local authority or without any connivance of the officials of the Municipal Corporation. Since the Commissioner has initiated action against its officials for the alleged violations it has to be inferred prima facie that the illegal activities have been committed by the operators of the restaurants as well as by the owner of the textile mill who has developed the mill area for commercial purposes in connivance with the officials of the Municipal Corporation. The relevant regulations prescribe for securing exemptions from operations of certain restricting norms. It has to be examined as to whether any relaxation and/or exemption has been accorded by the officials competent to grant such exemptions and relaxation in exercise of their discretionary powers. 16. The Commissioner of the Municipal Corporation and other high-ranking officials being the Head of the Corporation having responsibility to regulate and control the activities of the subordinates cannot disown their responsibilities. The higher officials cannot disown their vicarious liability. The conclusions drawn by the Commissioner himself prompt us to direct an independent probe by a Committee unconnected with the affairs of the Municipal Corporation and the State Government. 17. During the course of hearing, Mr. Sakhare submitted that the Municipal Commissioner has appointed Three Member Committee consisting of (1) the City Engineer of Corporation, (2) Deputy Municipal Commissioner and (3) Deputy Chief Engineer/Executive Engineer of the Corporation to carry out further investigation. In our prima facie opinion, the involvement of Officers of Municipal Corporation and the Government cannot be ruled out. With a view to ensuring that no criticism is levelled against the Committee on any count as also with a view to maintaining transparency, we are of the considered opinion that an independent Committee unconnected with the affairs of the Municipal Corporation and the State Government should be appointed. This is consistent with the principle that the justice should not only be done but must seen to have been done. 18. In pursuance of the directions issued by us, the Municipal Corporation has placed on record the policy decision taken by the Corporation declared under circular dated 10.11.2017 for according permission to the Open to Air Terrace/part terrace/common terrace (except Refuge floor) as a service area for serving food in a commercial mall building/Residential Hotel having existing eating house and lodging services available. We have gone through the policy decision taken by the Municipal Corporation. However, we cannot be unmindful of the shocking incident taking toll of 14 lives, and we are of the view that the policy adopted by the Municipal Corporation needs to be implemented with a lot of circumspection. It shall also be appropriate to have the scrutiny of the Policy by the independent Committee. Certain issues which probably need to be considered appears to have been neglected. It shall also be appropriate to have the scrutiny of the Policy by the independent Committee. Certain issues which probably need to be considered appears to have been neglected. The policy evolved by the Municipal Corporation dated 10.11.2017 prescribe for according permission to the Open to Air Terrace/part terrace/common terrace (except Refuge floor) as a service area. The aspect of live load factor from the point of view of structural design and structural stability needs to be taken into account. Before according any permission for conducting any activity on the terrace a structural audit of the building and more particularly the area proposed to be utilized for the commercial activity needs to be secured. 19. The another aspect is that while raising the construction, the terrace area is not normally designed to bear the live load which is under contemplation while putting said area for use for commercial purposes. The access to the terrace or the common areas on the top of the building is normally designed for a non-access areas. If at all any commercial activity is to be permitted at the open terrace the access shall have to be as per the parameters/norms prescribed and applicable for access areas. In the instant matter, as a result of blockage of access, the unfortunate incident had occurred resulting in loss of 14 lives. The policy framed by the Municipal Corporation, therefore, shall have to be closely scrutinized and shall be put to implementation only after the same has been screened and cleared by the experts and only after ensuring that the safety measures are in place. 20. The Committee also shall examine whether giving permission for any establishment in pursuance of the circular dated 10.11.2017 to the Open to Air Terrace/part terrace/common terrace (except Refuge floor) as a service area for serving food in a commercial mall building/Residential Hotel violates the rights of occupants of the building to use common area as contemplated by (1) the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, (2) the Maharashtra Apartment Ownership Act, 1970 and (3) the Real Estate (Regulation and Development) Act, 2016. 21. The petitioner has requested for issuance of directions for setting up a judicial Commission under the Commissions of Inquiry Act, 1952 for fixing the accountability of Public Officers and private persons involved in the tragic incident. 22. 21. The petitioner has requested for issuance of directions for setting up a judicial Commission under the Commissions of Inquiry Act, 1952 for fixing the accountability of Public Officers and private persons involved in the tragic incident. 22. The learned Senior Counsel appearing for the respondent Municipal Corporation has invited our attention to Section 3 of the Commissions of Inquiry Act, 1952 and contended that it would be within the exclusive domain of the Parliament or the Legislature of the State to direct appointment of the Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance. 23. Reliance is also placed on the judgment of Andhra Pradesh High Court in the matter of P. Janardhan Reddy v. State of Andhra Pradesh and another, reported in 2003 SCC OnLine AP 87 . In paragraphs-21 and 22 of the judgment, it is observed by the Division Bench of Andhra Pradesh High Court as narrated below : "21. The learned Additional Advocate General has also relied on a judgment in D. Satyanarayana v. N. T. Rama Rao, AIR 1988 AP 144 (FB) . This is a judgment of Full Bench of Five Judges of this Court. In para 32 of the judgment the Court held: "We have to dispose of a point concerning the issue of a writ of mandamus directing the Central Government to appoint a Commission under the provisions of Section 3 of the Commissions of Inquiry Act, 1952 which, in essence and substance, is the prayer in W.P. No. 12426 of 1987. Sri Ram Jeth Malani for the 1st respondent and the learned Advocate General, appearing for the second respondent, submitted that this Court would not be justified in issuing a writ of mandamus as prayed for in view of the clear provisions of the Section which gives a discretion to the appropriate Government to appoint or not to appoint a Commission even when it is found that there was a definite matter of public interest to be gone into by a Commission. ........... ........... Sri Ramachandra Rao, the learned Counsel for the petitioner, though persistent in his argument that where this Court was convinced that there was infraction of Constitutional or statutory rights or the rule of law, the procedural inhibitions should not stand in the way of issuing a writ of mandamus to the Central Government to appoint a Commission, if it on its own failed to do so, he hastened to add that in any event it was for this Court to mould the relief suitable so as to further the ends of justice. With respect to this, he has submitted that the learned Attorney-General himself had, during the course of his submissions, expressed this view. In our considered view, this Court would not be justified in issuing a writ of mandamus directing the Central Government to appoint a Commission to go into the charges levelled against the first and the second respondents. We are, however, of the definite view that it is the right and the duty of this Court to see that ends of justice should not be allowed to be frustrated, but this Court should exercise its discretion in moulding the relief in such manner as would meet the situation, particularly in view of the fact that the comprehensive provisions of Article 226 of the Constitution empower the High Court to issue orders "for any other purpose", apart from writs for the enforcement of any of the rights conferred by Part III." 22. In Siddha Raj Dhadda v. State of Rajasthan, AIR 1990 Raj. 34 , the Rajasthan High Court held: "We may at the very outset state that so far as the question of setting up Commission under the Act is concerned, under Section 3(1) of the Act, it is discretionary with the appropriate Government to set up a commission and it is only mandatory to set up a Commission if the resolution is passed by the House of People or as the case may be by the Legislature of the State. Where there is discretionary jurisdiction, no mandamus in our opinion, can be issued to the State Government to set up a Commission of Inquiry, for the purpose to make inquiry into the matter of public importance by notification in the official gazette." 24. Where there is discretionary jurisdiction, no mandamus in our opinion, can be issued to the State Government to set up a Commission of Inquiry, for the purpose to make inquiry into the matter of public importance by notification in the official gazette." 24. We called upon the State Government to inform as to whether the State Government intends to exercise the powers under Section 3 of the Commissions of Inquiry Act, 1952 for setting up Judicial Commission to conduct a judicial probe in the matter. A communication issued by the Under Secretary, Urban Development Department dated 15.2.2018 is placed on record. Same is marked as "X" for identification. It is informed on behalf of the State Government that an enquiry regarding the incident was conducted at the level of Municipal Corporation of Greater Mumbai and a comprehensive report has been submitted to the Government and the further action is within contemplation by the State Government. It is also informed that an offence bearing Crime No.291/2018 has been registered at N.M. Joshi Marg Police Station, which is also being investigated. It appears that the State Government is not desirous of appointing a Commission under the Commissions of Inquiry Act, 1952. It is recorded in communication marked ''X'' that if the High Court directs to appoint the Commission, the Government will abide by the order of the High Court. 25. It cannot be presumed that the State Government is not aware of Section 3 of the Commissions of Inquiry Act, 1952 and that it is within the exclusive domain of the State Government to appoint a Commission. In the circumstances it shall have to be presumed that the State Government is not willing to exercise its powers conferred under the Commissions of Inquiry Act, 1952. 26. The Counsel appearing for the petitioner has invited our attention to the judgment in the matter of State of Uttar Pradesh and others v. All Uttar Pradesh Consumer Protection Bar Association, reported in (2016) 11 SCC 606 . It would be apt to refer paragraph-7 of the judgment, as quoted below: "7. The question of deficiency appears to be a country-wide phenomenon. The nature of deficiencies may vary from state to state but there is no doubt that facilities are inadequate in small or large measure in almost all the States. It would be apt to refer paragraph-7 of the judgment, as quoted below: "7. The question of deficiency appears to be a country-wide phenomenon. The nature of deficiencies may vary from state to state but there is no doubt that facilities are inadequate in small or large measure in almost all the States. One of the options that we may have had was to examine the question of deficiency qua each State ourselves to issue such directions as were necessary. That exercise would, however, have been time consuming and difficult keeping in view the fact that the States concerned would have to respond to the queries that this Court may raise in the process delaying the whole exercise. It was for that reason that instead of undertaking any such exercise ourselves we thought of entrusting the same to a Committee which would then look into the matter more elaborately. The Committee would have the advantage of interacting with the officials from Central/State governments concerned. We are happy to note that the Government of India have recognized the importance of removing the deficiencies in the Consumer Fora and Commissions to make them more effective and efficient for a speedier disposal of consumer disputes. This is evident from the fact that Mr. Maninder Singh has, at the Bar, agreed not only to the constitution of the Committee but also to the terms of reference being elaborately formulated so that all aspects including the desirability of creation of a separate cadre for staff are addressed by the Committee. With the assistance of the learned Counsel for the parties we have been able to finalize the terms of reference to be made to the Committee. But, before we enumerate the terms of reference, we direct that the Government of India shall, by an appropriate notification, constitute a three member committee comprising the following: 1. Hon''ble Dr. Justice Arijit Pasayat, Former Judge, Supreme Court of India. 2. Hon''ble Ms. Justice Rekha Sharma, Former Judge, High Court of Delhi. 3. The Secretary to Government of India, Department of Consumer Affairs. OR His nominee." 27. Hon''ble Dr. Justice Arijit Pasayat, Former Judge, Supreme Court of India. 2. Hon''ble Ms. Justice Rekha Sharma, Former Judge, High Court of Delhi. 3. The Secretary to Government of India, Department of Consumer Affairs. OR His nominee." 27. It is urged on behalf of the petitioner that considering the facts and circumstances, seriousness of the issue, the nature of violations alleged and possible involvement of the officials and non-officials at all levels, it is desirable to have an independent probe by appointing a Committee consisting of members unconnected with the affairs of the Corporation and the State Government and more preferably under the Chairmanship of a former Judge of the High Court. 28. We have also given our anxious thought to the suggestions advanced by the petitioner and we are of the considered opinion that an independent Three Member Committee, under the Chairmanship of a retired Judge of the High Court and consisting of a prominent Architect forming part of Panel of Architects of the High Court as well as an expert conversant with the Town Planning and Town Planning Laws or a retired Secretary of the Urban Development Department, have to be appointed to probe into the genesis of the unfortunate incident as well as to consider the violations at the levels of restaurant operators, owner of the Mill, involvement of the officials of the Corporation and/or State Government and for making recommendations for avoiding repetition of such unfortunate occurrences in future. The details of composition of the Committee and the terms of reference shall be finalized on the next date of hearing. 29. Time to carry out amendment as per order dated 15.1.2018 is extended for a period of one week from today. Stand over to 23.2.2018.